May 07, 2007

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). My goal is to post new cases on a weekly basis. This posting covers the three patent cases that were appealed from the district court level and decided by the Federal Circuit during the 17th calendar week of 2007. All opinions are precedential unless otherwise indicated.

In re Omeprazole Patent Litigation (04/23/2007): appeal of two phases of a four-phase patent infringement trial of literal infringement of several claims of the patent at issue, additional judgments regarding enforceability of the patent, and the determination by the district court that the asserted claims of the patent at issue were anticipated or obvious (affirmed); discussion of patent related to Omeprazole (the generic name for Prilosec® (U.S. Patent No. 6,013,281, entitled “Method of making a pharmaceutical dosage form comprising a proton pump inhibitor”); “infringement analysis proceeds as a two-step process: claim construction, followed by comparison of the claims to the accused device”; discussion of the claim phrase “a water soluble salt”; no error of district court’s claim construction or determination of infringement; discussion of anticipation of patent, noting that “[E]mbodiments and examples appearing in the specification will not generally be read into the claims”; refusal to read “limitation” into the claim 1 of the patent at issue because it was an example from the specification and there was no “clear intent to the contrary” to direct the court to import that example into the claims; district court’s determination of inherent anticipation upheld; determination that it would have been obvious to one skilled in the art to substitute any number of alkaline reacting compounds (ARCs) for the claimed ARC; discussion of inequitable conduct and unclean hands, noting that the challenger of the patent “bears the burden of proving by clear and convincing evidence that [the patentee] acted with unclean hands”; court affirmed findings of literal infringement, anticipation and obviousness of specific claims, the conclusion of mootness of counterclaims, that there was no inequitable conduct, fraud, or unclean hands, and that two of Astra’s other patents are not unenforceable through “infectious unenforceability” (because no finding of inequitable conduct of the first patent)

Verizon Services Corp., et al. v. Vonage Holdings Corp., et al. (ORDER) (04/25/2007): motion for stay, pending appeal, by Vonage of the permanent injunction issued against it by the U.S. District Court for the Eastern District of Virginia; grant of motion to stay, with briefing and oral argument deadlines provided

Pods, Inc. v. Porta Stor, Inc., et al. (04/27/2007): appeal of judgment of patent infringement and copyright infringement (affirmed-in-part, reversed-in-part, and remanded-in-part); discussion of patent related to an apparatus and method for lifting a storage container from the ground onto a transport vehicle or vice versa (U.S. Patent No. 6,071,062, entitled “Apparatus for lifting, handling, and transporting a container”); jurisdiction to hear appeal as case falls under Federal Rule of Appellate Procedure 4(a)(2); “[A]rguments made during prosecution regarding the meaning of a claim term are relevant to the interpretation of that term in every claim of the patent absent a clear indication to the contrary”; district court found infringement by equivalents of two of the claims, but this court noted that “prosecution history estoppel limits the range of equivalents available to a patentee by preventing recapture of subject matter surrendered during prosecution of the patent”; discussion of ownership of a copyright and “works made for hire”; determination that the district court’s claim construction was incorrect, that no literal infringement could occur under the correct construction, infringement under the doctrine of equivalents barred by prosecution history estoppel, and a reversal of the judgment as a matter of law on copyright infringement


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Mark Reichel
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I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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